NATIONAL JUDGES' PRESENTATIONS
SE Sweden
Kristina BOUTZ - Senior Judge of Appeal, Head of Division, Svea Court of Appeal - Recent developments in Swedish national patent law and case law
1. Leave to appeal
I would like first of all to say a few words about a reform of court procedure in Sweden that took place almost four years ago, entitled "More modern court proceedings". One new measure was to introduce video recordings of all examinations of witnesses, parties and experts in the first-instance proceedings before the district courts. The video can then be played in any proceedings before the Court of Appeal and Supreme Court, so that the person concerned need not come and be heard a second time. Where necessary in a certain situation, however, a fresh examination will take place before the Court of Appeal. This new procedure also applies to witnesses and experts in patent cases, and experience with the new regime has been very good.
Since 1 November 2008, all parties wishing to appeal in a civil action must first seek leave to appeal in order for their case to be reviewed in full by the Court of Appeal. In Sweden, all patent cases are heard by the District Court of Stockholm and Svea Court of Appeal. The Court of Appeal has dealt with 33 patent cases in the last two-and-a-half years. It refused leave to appeal in seven of those cases (two concerning judgments and five concerning decisions on injunctions and the like). In other words, a review has been allowed in relation to 83% of judgments in patent cases. This can be compared with 40% for judgments in civil cases in general. The rate has increased over recent years and was just 25% to 30% at the outset. The reason for the difference in rate between patent cases and other civil cases is that, in patent cases, it is more often impossible, without granting leave to appeal, to establish whether there are grounds for varying the district court's judgment. Such lack of clarity is one of the four grounds for granting leave to appeal. The others are:
- there is reason to vary the district court's judgment
- it is important that a superior court consider the appeal to provide guidance on applying the law
- there are other extraordinary reasons to entertain the appeal.
2. A Supreme Court decision
On 24 May, 2011, the Supreme Court rendered a decision on the period of limitation for claiming damages in a case of patent infringement. The law states that compensation can only be awarded for an infringement occurring in the last five years before the action was brought before the court. The question was how this was to be applied where there have been several incidents of infringement over time.
The parties to the case were DeLaval International, a Swedish company, and Lely Industries, a Dutch company, which are competitors on the world market for milking devices. It had been established in earlier court proceedings that DeLaval's patent for a milking robot was valid and that Lely, by selling a type of milking robot, was infringing it. It was not disputed that Lely had sold seven milking robots to farmers in Sweden. The various incidents of infringement were as follows:
(a) signing of the contract of sale
(b) delivery of the robot
(c) installation of the robot
(d) start-up of the robot
(e) completion of adjustments to the robot
(f) rendering of the final payment.
DeLaval claimed compensation for exploitation of the invention in relation to all seven milking robots and compensation for further damage (in this case: lost profit) in relation to four.
The parties disagreed as to when the period of limitation had started. Lely's position was that the starting point was the day on which the contract of sale had been signed, while DeLaval maintained that the period had not started until all the incidents of infringement had occurred.
Taking a different view from the District Court of Stockholm and Svea Court of Appeal, the Supreme Court found that an infringement may consist of a series of acts. The first of these acts can already cause damage. Subsequent acts of infringement may increase the initial damage or cause new damage. This means that a new period of limitation starts when further damage is caused by a new act of infringement, whereas an act of infringement that does not cause any damage cannot trigger a new period of limitation.
The Supreme Court established that the compensation for exploitation of the invention should be equivalent to a reasonable licence fee. The obligation to pay this compensation arose on signature of the contracts with the farmers.
As to compensation for further damage, the Supreme Court found that DeLaval had lost its opportunity to sell its own milking robot once prospective customers had chosen to buy the Lely robot. It was therefore natural to suppose that DeLaval had suffered damage on the day a contract was signed by a farmer. DeLaval had not claimed that any of the other acts of infringement had caused further damage in terms of lost profit. The conclusion was that no new period of limitation had started at the time of the other infringing acts. The relevant act of infringement was the signing of the contracts to sell the robots.
As a result, DeLaval was compensated with respect to only two of the seven robots.